As a law professor, if a judge issues a ruling that you don’t entirely embrace, there’s a couple ways to deal with it. You could limit yourself to carefully explaining your well-thought-out objections to the judge’s reasoning. Or you could spice up your arguments by baselessly asserting that state judges who went to “non-elite” schools are just biased against smart people like you.

This guy opted for the latter.

Last week I got denounced for disrespecting state judges and I didn’t even say they weren’t competent. So to all the bar associations out there, if you want to flex your outrage, let me offer this law professor as the real target….

Congratulations, local Chicago judges! You’ve joined the ranks of people Professor Brian Leiter doesn’t like. I can’t say it’s an intimate group, but welcome!

Professor Leiter’s fellow academic, Professor Peter Ludlow of Northwestern, filed a defamation suit alleging that Sun-Times Media and the owners of WLS-AM defamed him by running stories with headlines like “Student allegedly raped by professor suing Northwestern University.” According to another lawsuit, Ludlow made unwelcome advances toward a female student and then took her to his place, where she blacked out and woke up in his bed with his arms around her and her blouse unbuttoned. Ludlow argued, inter alia, that since no one was alleging penetration, it wasn’t rape but a — for lack of a better term — “mere” sexual assault.

Judge Kathy Flanagandisagreed, in part because “rape” is synonymous with “sexual assault” in common parlance and because there’s no reputational difference between being an alleged sexual assailant and an alleged rapist. You still don’t get invited to parties. Professor Leiter took issue with that and raised some substantive arguments. He’s wrong, of course, but there’s no need to go into that debate here.

[T]his is really crucial, the local judges in the Chicago state courts are, I have been told, mostly graduates of non-elite law schools and have contempt for elite academics. Judge Flanagan, who handed down this decision, graduated from John Marshall here in Chicago, a regional school that ranks well behind other very good regional schools in Chicago like Loyola/Chicago, Chicago-Kent and DePaul. I do not know Judge Flanagan, but I am familiar with the general problem. A couple of years ago, I was considering bringing a defamation action that would have to be filed in the local state courts in Chicago (rather than the federal courts), but I was advised by a Chicago lawyer with considerable experience in these matters that the local Chicago judges would view with skepticism and contempt any such lawsuit by a University of Chicago professor. I am, like any experienced lawyer, a legal realist, that is, I know that non-legal factors have a significant influence on outcomes in the court. This is yet another case in point.

The hell?

Is he really saying that the entire Chicago justice system is made up of jurists willfully misinterpreting the law just to stick it to people they think are smarter than them? That’s tinfoil-hat territory. It all smacks of an effort to bridge the cognitive dissonance caused by an experienced lawyer talking him out of a meritless defamation claim by saying, “Yeah, well, I’m sure you’re right about the law, but the judges just won’t side with someone of your preeminent brilliance.” It’s possible — just possible — that despite having a law degree, Professor Leiter is not the world’s greatest expert on how the rubber of defamation law hits the road, seeing as he teaches “Law and Killing Time 3L Year Talking About Nietzsche.”

As for Judge Flanagan specifically, I’m not running to the defense of John Marshall as an institution, but she’s got 35 years of experience between private practice and serving as a judge — so maybe the fact that U.S. News didn’t rank John Marshall in 2014 doesn’t really speak to her qualifications. And when it comes to the merits of her decision, keep it substantive.

We wouldn’t want her to feel defamed by an unsupported allegation of bias.

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